Judge rules in favor of news outlets in right-to-know lawsuit

A district court judge has determined that candidates for judicial positions do not have a reasonable expectation of privacy when being interviewed by representatives of the governor’s office, the result of a lawsuit filed by the Choteau Acantha newspaper and Montana Free Press.

The Acantha and MTFP lawsuit contended that an advisory council that Gov. Greg Gianforte appointed to help him winnow the field of candidates for a judicial vacancy in north-central Montana unconstitutionally conducted interviews and deliberations in executive session, violating the state’s right-to-know laws.

“The judge confirmed our understanding of the Montana Constitution and case law, that applicants for judicial vacancies do not have a reasonable expectation of privacy in matters related to their qualifications,” Melody Martinsen, the editor and co-owner of the Acantha, said in a statement to MTFP.

The governor’s office said it intends to appeal the ruling to the Montana Supreme Court.

“The governor is committed to protecting an individual’s right to privacy while maintaining the public’s right to participation,” Gianforte spokesperson Kaitlin Price said in a statement Tuesday.

The lawsuit marks the first challenge to the ad-hoc judicial vacancy process that Gianforte created following the passage of the 2021 session’s Senate Bill 140. That legislation, backed by Gianforte and Republican lawmakers, eliminated the state’s Judicial Nominating Commission in favor of direct gubernatorial appointments to the bench. Previously, the commission interviewed candidates and gave the governor a list of options from which he had to choose. The bill itself faced an unsuccessful legal challenge.

While the bill eliminated the commission, it didn’t explicitly prescribe how the governor should fill judicial vacancies, so long as the candidates are lawyers in good standing. But, for each of the eight seats on the bench that have opened since the passage of SB 140, the governor has appointed an advisory council comprising prominent community members to interview and recommend candidates. The governor has no obligation to select the candidate the council recommends.

In January, the Montana Supreme Court notified Gianforte of an upcoming vacancy in Montana’s Ninth Judicial District, which encompasses Glacier, Pondera, Teton and Toole counties. As he had done in the past, the governor appointed an advisory council.

In March, the council held a meeting and interviewed two candidates for the position, state prosecutor Dan Guzynski and attorney Greg Bonilla, who had worked at County Litigation Group in Helena for 14 years, defending counties, special districts and government officials.

Reporters from the Acantha and MTFP attended the meeting. The council, presided over by Deputy Teton County Attorney Jennifer Stutz, conducted some perfunctory business before Stutz announced that it would enter executive session — in other words, to close the meeting to the public, a step that public bodies can sometimes take to discuss personnel or legal matters — to interview the candidates, both of whom had invoked their rights to privacy and requested their interviews be closed. The two reporters at the meeting objected, arguing that the public’s right to observe the process outweighed the candidates’ individual right to privacy.

The Montana Constitution grants citizens the right to observe the actions of their government, Martinsen told the council. But it also provides for a right to privacy. When those rights come into conflict, case law and the Constitution provide for a balancing test: The right to know prevails “except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

“In this case, two Helena attorneys are invoking their right to privacy in their interviews with this advisory council,” Martinsen told the council during its March 23 meeting in Conrad. “I do not believe they have a privacy right that society recognizes as appropriate. They are not undergoing a personnel performance review with their boss. They are not applying for a job in the private sector. They are not even applying for a public employee position. They are applying for an elected position, a position in which every person in the 9th Judicial District is their de facto boss.”

After almost an hour of debate and deliberation — a period during which one of the council members, former newspaper publisher LeAnne Kavanagh, resigned in protest — Stutz decided to go into executive session.

After the council’s closed-door deliberations, which resulted in recommendations for both Guzynski and Bonilla, Martinsen requested and received a list of the questions posed to the candidates. The questions did not appear to involve any matters — such as health issues — that would require a privacy shield. And asked whether the council discussed any private or personal matters during its interviews with the two candidates, council member Daniel Jones, a Conrad attorney who supported keeping the meeting open, was unequivocal: “No. Flat out, no.”

Gianforte eventually selected Bonilla for the position.

In April, the Acantha and MTFP sued, requesting the court declare that the judicial vacancy councils are public bodies subject to open meeting laws, that there was no lawful basis for closing the March meeting and that even if a candidate had a “subjective” expectation of privacy, there was no reasonable basis for that expectation because the council’s discussion pertained to an elected office for which the demands of individual privacy do not exceed those of public disclosure.

The governor’s office filed a motion to dismiss the case, challenging the process under which Stutz, the presiding officer, was served with the lawsuit, and arguing that the news organizations were improperly requesting that the court preemptively determine the public’s right to know outweighs the individual right to privacy in all matters involving judicial vacancies.

Helena District Court Judge Mike Menahan ruled that Stutz was properly served and that nothing would prevent future judicial candidates from asserting their individual right to privacy.

Neither of the candidates, Menahan wrote, described a specific privacy concern. The Montana Supreme Court, he noted, has previously held that the right to privacy “turns on the reasonableness of the expectation [of privacy], which may vary, even regarding the same information and the same recipient of that information.”

With neither candidate specifically identifying why they invoked the right to privacy — and with apparently no private matters discussed during the deliberations — it’s impossible to balance their privacy interests with the public’s right to know, Menahan wrote.

Further, “in putting themselves forward to be considered for a public official position, the candidates knowingly and willingly subject themselves to public scrutiny,” diminishing their expectation of privacy, the judge wrote.

In a further comment to MTFP, the Acantha’s Martinsen said Menahan laid out clear requirements for future meetings of judicial vacancy advisory councils.

“We hope that Gov. Gianforte will continue to appoint grassroots-based citizen advisory councils who will, in the open, vet applicants and make recommendations to him,” she said.

The author of this story, MTFP’s Arren Kimbel-Sannit, attended the March meeting of the advisory council and is named in the court’s ruling.